A Reply to William Patry

The following is a reply to William Patry’s lengthy response to my blog of March 16. Both the blog and Mr. Patry’s response may be found here. Given the length of my reply, for ease of reading, I am posting my reply here and inserting a cross-reference to this page in the comments section of the March 16 blog.

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Mr. Patry,

I have the greatest respect for your knowledge and experience, and for your contributions to the copyright debate, both through your texts and through your lively blog. However, I sense a significant internal contradiction in your comment to my blogs that I would like to explore.

In your comment, you say three key things. The first is to affirm, with humility, that as a writer of learned secondary authorities, your status falls beneath those of other authorities on the state of the law, and might not even be rightly placed in the same classification:

“The greatest authority on copyright law in the U.S. is the U.S. Congress; after that, the U.S. Supreme Court, and after that the circuit courts of appeals. Commentators, like Nimmer and myself[,] are not authorities in this sense. What we say is not law in any sense of that word. We may accurately describe law as made by Congress or the courts, or we may inaccurately describe law as made by Congress and the courts.”

Immediately thereafter, you state your case for disbelieving the account of Mr. Nimmer on the fourth factor in the statutory test. I will not stand between two giants on this point, and note that the Nimmer text takes into account the critiques of circularity raised by you and Judge Leval on this issue.

However, you follow with an extended review of the conclusions of the U.S. Supreme Court in Harper & Row:

“Harper & Row merely cited Nimmer and did no analysis of its own; it was dictum, [the] Court did not, in fact, base its decision only on the fourth factor. But it is true that until Campbell rejected Harper & Row’s treatment of the fourth factor, lower courts did cite the “single most important factor language.” Judge Leval and I both [said] that Harper & Row and the lower courts following it were wrong on this point and we said so. Our advocacy was adopted by the Campbell court; it is, therefore, is entirely inaccurate of you to pretend that our views remain mere criticisms of Sony and Harper & Row. Campbell accepted them and they are now the law in the U.S., like it or not.”

Here, it seems to me that you are elevating your status above that of the U.S. Supreme Court by dismissing its statement as “dictum” because it did not “base its decision only on the fourth factor” (my emphasis). Both of our Supreme Courts have a robust filtering mechanism to ensure that they are considering only cases of broad public importance. And as those cases taken are of broad public importance, at least here in Canada, the old-fashioned bright-line test of what is dictum and what is not gives way to the question of how those courts meant to guide deliberations within lower courts. As Canada’s Supreme Court held not long ago in the Henry case, at para. 57:

“All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding” in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity.”

I am not aware of a similar case in the United States, but I would suggest that the statement by the U.S. Supreme Court in the Harper & Row case was unequivocal and meant to direct courts below as to the central importance of the “effect on the market” factor in evaluations of s. 107. As it is one evaluative factor amongst four prescribed by the statute (and considered by the U.S. Supreme Court in Harper & Row), I do not think that Harper & Row stated a view of U.S. law where the fourth factor would always be controlling. Where market harm attributable to the use of the copyrighted work is low, and the other fair use factors suggest that the use is fair, no rational reader would consider the discussion of the fourth factor in Harper & Row to trump the analysis. This would be the error of creating a hardened per se rule (a fallacy discussed in the Campbell case’s discussion of Sony).

Now let’s turn to the Campbell case. As mentioned in my second posting on this issue, I see no reason why Harper & Row and Campbell cannot stand together. The Campbell case cited to Harper & Row repeatedly, including to the “dictum” you have criticized, and in a voice that suggests a continuity with Harper & Row, not a break from it. Three key quotations in Campbellincluded:

[577] “The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by case analysis. Harper & Row, 471 U. S., at 560”.

[584] “As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561”

[585] “Rather, as we explained in Harper & Row, Sony stands for the proposition that the “fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” 471 U. S., at 562.)”

In its discussion of the fourth factor, Campbellcites to Harper & Rowand the very same section of Nimmer criticized by you. It cites you and Judge Leval at 591 to suggest that “as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it”. It states the broader proposition that the fourth factor “requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market” for the original.” (This is a practice I have described as “death by a thousand cuts” in a previous blog, which forms a different cognizable form of market harm than one that swamps the market by itself in one fell swoop.) Campbell then notes that “Market harm is a matter of degree, and the importance of this factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors. … Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.”

If I understand your critique, it is that this final statement had the effect of “rejecting” Harper & Row on the fourth factor. The problem I would have with such a conclusion is that Campbell is relying on Harper & Row for this statement of law: as I quoted above, the CampbellCourt cited Harper & Row for the proposition that “[t]he task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis”. Elsewhere, Campbell cites the statement from Harper & Row that is front-and-centre in our debate and makes no adverse comment on it. As I read Campbell, it does not “reject” the statement from Harper & Row, but reminds courts and commentators that Harper & Row also insisted on a case-by-case analysis of the s. 107 factors. As I suggested in my second blog, there is every reason to believe that Campbelland Harper & Rowcan and do stand together as a unified statement of U.S. law.

Then the question becomes how the U.S. appellate courts, which you describe as a higher authority than you, have interpreted Harper & Rowand Campbelltogether. In my earlier blogs, I linked to the decisions of three different circuits that have, in the years following the handing down of the Campbelldecision, clearly stated the fourth factor consideration of Harper & Rowas good law. In my response to Ariel Katz’s blog, I also raised the en banc decision of the Sixth Circuit in the Princeton University Press case:

“The four statutory factors may not have been created equal. In determining whether a use is “fair,” the Supreme Court has said that the most important factor is the fourth, the one contained in 17 U.S.C. § 107(4). See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566, 105 S.Ct. 2218, 2233, 85 L.Ed.2d 588 (1985), citing 3 M. Nimmer, Copyright § 13.05[A], at 13-76 (1984). (But see American Geophysical Union v. Texaco Inc., 60 F.3d 913, 926 (2d Cir.1994), cert. dismissed, ___ U.S. ___, 116 S.Ct. 592, 133 L.Ed.2d 486 (1995), suggesting that the Supreme Court may now have abandoned the idea that the fourth factor is of paramount importance.) We take it that this factor, “the effect of the use upon the potential market for or value of the copyrighted work,” is at least primus inter pares, figuratively speaking, and we shall turn to it first.”

In the eyes of that higher authority, then, the fourth factor is at least “first among equals” even after Campbell. You may disagree with that evaluation or the evaluations of the other appellate circuits (see here, here and here) that apply the statement from Harper & Row as the law of the land. But if, according to your pecking order of authorities, the views of such courts must be accepted as a higher authority than textual authorities such as yourself or Mr. Nimmer, then the basis of your conclusion that your views “are now the law in the U.S., like it or not” fails your own test. Rather, it appears that there is disagreement amongst courts and commentators as to how the decisions in Harper & Rowand Campbell speak to each other. You and the authors of Nimmer still disagree as to how the four factors are to be ranked. The law remains, as it almost always does, in flux.

In closing, I would make one passing observation. There are some people, including all those swept into this exchange of notes, who are inflicted with a passion for copyright and possessed of views on what it can and cannot accomplish in forwarding societal goals. In your book on moral panics, you rightly noted that metaphor often inserts itself in an unhelpful way into the debate to shout down design and policy considerations. I would limit myself to observing that metaphors and other figures of speech are used (and abused) by all comers to this debate, not just one side. Characterizing Mel Nimmer as having the pretensions of God may or may not be accurate (I never knew the man except through his writings), but you have to appreciate that the insertion of that point in your reply knocks him down, not through reasoned debate (as in your detailed evaluation of his cited cases in your text), but through a rhetorical contrast between his ego and yours. The “stated rationale” of Campbell simply did not overrule Harper & Rowin the way that the U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) overruled its 1986 decision in Bowers v. Hardwick, 478 U.S. 186. The decisions of the federal appellate circuits that I have raised speak to the continued relevance in their eyes of the “dictum” in Harper & Row, or surely all courts would have adopted the reasoning of the Second Circuit in the American Geophysicalcase raised at length by Professor Katz. We really all are mortals doing the best we can to describe the law and counsel how it might evolve. So let’s all try to remain humble in advancing our views.

I conducted an empirical study of all US fair use opinions between 2006-2010, following on Barton Beebe’s monumental study of all fair use opinions between 1978 and 2005. I found a dramatic shift in fair use doctrine since 2005. Today, the first factor and the issue of whether the defendant’s use is transformative are, by far, the dominant factor in fair use analysis.Over 95% of unreversed district court opinions considered transformativeness and in all cases in which the court found the use to be unequivocally transformative, the use was found to be fair. In contrast only one-fifth of the opinions cited the Harper & Row dictum about the single importance of the fourth factor and, of these, 60% found no market harm and 50% found that the fourth factor favored the defendant. See: Making Sense of Fair Use, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1874778.

In respect of Professor Netanel’s study, there remains the question of how one can classify the findings of courts in the fair use arena so as to make an empirical study objective enough to withstand scrutiny.

As the introduction to Prof. Netanel’s article properly notes, there are real questions as to how “empirical” the results of a fair use analysis can be. As David Nimmer pointed out in his 2003 study “Fairest of them All” and Other Fairy Tales of Fair Use, classifying results on the four factors is a delicate and inevitably controversial undertaking. For example, Prof. Nimmer notes that the first factor alone could be isolated into four discrete subcategories, each of which might arguably need to be tracked separately as well. He also notes that, at least as of 2003, the application of the word “transformative” (in his view) “has proved less than uniform in the case law”. The idea of “transformative” may be an eye-of-the-beholder consideration, with one observer considering a pattern of use to qualify, and the other taking the opposing standpoint. Last, Prof. Nimmer points out, with lengthy citations to support his view, that “judges, treatise writers, and other commentators offer a host of different explanations for how fair use cases actually get decided, apart from the four factors”. How these “different explanations” cohere with the law as it is being expressed in the courts is a live question both for Prof. Nimmer’s classification of the law as of 2003 and Prof. Netanel’s classification of the law as of 2010.

Indeed, as Prof. Netanel’s article notes, scholars such as Prof. Samuelson have “found order” in fair use by creating a taxonomy of uses and breaking down cases into numerous categories and sub-categories based upon the type of use at issue. To the extent that these further taxonomies are relied upon as an assessment of the law, one might raise the question of whether the answer to the question risks being predetermined by the system of classification. (Similar critiques have been raised for many decades in literary criticism by deconstructionist theorists, who have pointed out that the ideology of the asker may determine the answer, even for inquiries that appear on first glance to be completely objective in character. Such an analysis may apply with greater force to interpretations of judicial decisions, where the relative weight assigned to different factors is seldom spelled out on the face of a decision.)

Naturally, I realize that the above observations also apply to an analysis that privileges “effect on the market” over transformativeness in the recent case law in the United States. Perhaps this is why, in an adversarial system, arguments over whether a course of dealing or use is fair are presented to courts for evaluation of whose narrative is most convincing in light of the evidence, statutory language, legislative history, precedent and policy.

David Nimmer’s early study is valuable, but very different than Barton Beebe’s and my own. David compared his own informed, but necessarily subjective, assessment of how each factor should be applied in the cases to how the courts ruled. Beebe and I simply coded and tabulated what the courts actually said — and we considered the primary factors and subfactors that appear in judicial opinions. Our studies are far more objective in that sense, although, we each recognize that courts might actually rule on the basis of considerations other than what they report in their opinions. (Matt Sag’s excellent study, which I discuss in my own, addresses some of those possible subtextual considerations and influences.) On the issue of what counts as transformative, my study supports earlier studies showing that US courts almost unanimously define transformative as a use for a different expressive purpose from that of the original, not necessarily a use that modifies the original. As my study recognizes, judges’ conclusions about what constitutes a different expressive purpose may be influenced by their unstated, subjective considerations, as well as more objective considerations (such as prior cases on point).